The protectors

Charles Ciumei looks at a recent 'whistleblower' case and its effect on future tribunal policy

A case which may open the floodgates of litigation is the Employment Appeal Tribunal decision in Parkins Sodexho. Parkins operated a buffing machine for Sodexho. He complained to Sodexho that in one of the places where he had to use his buffing machine, he did not have supervision on-site, and also, in the event of a problem, he had been instructed to telephone a supervisor off-site in the evenings.
Parkins said these were health and safety issues and breaches of his contract of employment. When that employment was summarily terminated after only three months, Parkins brought a claim of unfair dismissal on the basis that he had been dismissed because he raised a health and safety matter (contrary to s.100(1)(c) of the Employment Rights Act 1996), and that he had made a protected disclosure under the provisions of the Public Interest Disclosure Act 1998, now incorporated into Part IVa of the Employment Rights Act 1996. If correct, Parkins would have been automatically unfairly dismissed, notwithstanding that he had not worked for Sodexho for one year.
The appeal decision was not a final determination of his complaint of unfair dismissal, but only of his application for interim relief, ie an order that his contract of employment continue in a limited form until the determination of his unfair dismissal claim. The arcane structure of the Employment Rights Act prevented the employment tribunal from considering the health and safety complaint at the hearing for interim relief. This would, of course, appear to be the part of that act most obviously applicable to Parkins' claim.
The tribunal instead had to consider the prospects of the success of Parkins' claim that he had been dismissed for being a whistleblower. It dismissed his application. The Employment Appeal Tribunal reversed this decision and remitted the case to a fresh tribunal. The employment tribunal had ruled that the whistleblowing provisions in the Employment Rights Act did not apply to Parkins, saying that it was not “within the letter or spirit of the statutory provision”.
The appeal tribunal disagreed. It held that Parkins' complaint to Sodexho that his contract of employment had been breached by failing to provide on-site supervision was capable of being a protected disclosure within s.43b because ii could be a complaint that “a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”. The legal obligation in question was that which Parkin said had been breached under his employment contract. The Employment Appeal Tribunal decided that this was within the letter of the act. As to whether it was also within the spirit of the legislation was a question it did not feel confident to answer.
So by making a complaint about a breach of contract of employment, an employee may be able to bring themselves within the protection for whistleblowers provided by the Public Interest Disclosure Act 1998. This means a dismissal will be automatically unfair if the whistleblowing is shown to be the main reason for dismissal. Not only does the requirement for one year's continuous employment not apply, but there is no limit on the amount of compensation that can be awarded by an employment tribunal. This also applies to a constructive dismissal. Moreover, an employee is protected from detrimental action by the employer during employment. And all of this protection applies not just to employees but also to 'workers', for which there is an especially wide definition in s.43k of the Employment Rights Act.
It will be interesting to see if this decision is taken up by employees' and workers' representatives. Will the floodgates really open? Lawyers might apply some engineering wisdom: if the floodgates stick, don't force them, just get a bigger hammer. Perhaps the answer is an obligation imposed on an employer not to destroy or damage the relationship of trust and confidence with an employee. This has a broad scope and is implied into every employment contract. It is also relied upon in many claims of constructive dismissal. Just make sure that your client has complained about their treatment before resigning.
Charles Ciumei is a tenant at Essex Court Chambers